Introduction to Canadian Law
The Constitution Act, 1867 gives the federal and provincial (and territorial) governments the power to make different laws according to the area that the law covers. For example, the federal government is given the power to make laws about currency and coinage, and the provincial government is given the power to make laws about property and civl rights in the province. Laws made by the federal government apply to the whole country whereas provincial laws apply only in a particular province. The official term for these laws is “statutes”. Federal laws are referred to as Statutes of Canada; provincial (or territorial) laws are referred as the Statutes of that area (for example: the Statutes of Alberta).
Laws that apply to the abuse of older adults can be found in a variety of statutes, both federal and provincial (or territorial). These statutes involve both criminal and civil law.
- Criminal Law is the branch of law that states what action is harmful to society and should be punished.
- Civil Law is the branch of the law that deals with relationships and conflicts between individuals.
Some of these laws deal specifically with the well-being of older adults and others in vulnerable situations in society. In addition, older adults can also be protected by general laws which apply to citizens of all ages.
In Canada, the law that deals with what we generally consider “crimes” is called the Criminal Code of Canada. Some forms of abuse against older adults can fit into the definitions of crimes described in the Criminal Code.The decision about whether or not a crime has occurred will be made by a judge or jury once Crown counsel has presented evidence to the Court and the accused has had a chance to defend him or herself.
In order to better understand the offences under the Criminal Code of Canada, it is important to know that there are three categories of criminal charges. These categories are:
- summary offences;
- indictable offences; and
- offences which can be treated as either summary or indictable.
Indictable offences are more serious than summary offences. For example, murder is an indictable offence, while causing a disturbance is a summary offence. In general indictable offences carry greater penalties that summary offences. Hybrid offences can be treated as either summary or indictable, depending on the severity. Examples include assault and sexual assault. It is the Crown counsel that decides if the matter will proceed by summary offence or indictable offence.
In order for the Crown to take criminal legal action against an abuser, it is necessary for the police to compile evidence and formally charge the abuser. If the accused person does not plead guilty, there will be a trial at which you might have to give evidence. If the abuser is convicted or released on bail, the courts can impose some restrictions on the offender regarding contact with you.
It is important to remember that whenever a person is charged with a criminal offence he or she is innocent until proven guilty. The lawyers who prosecute offenders have to prove that the person committed an offence beyond a reasonable doubt. In order to prove an offence has been committed, they need evidence. If you have been abused, consider keeping a record of the times when you are abused or when you get medical treatment. This record may be useful as evidence.
Civil law deals with relationships and conflicts between individuals (or organizations and companies). For example, civil law allows for legal action against another person to recover compensation for damages or injuries caused by that other person,
A civil action for financial compensation will only succeed if some damage can be proven.
In order to start a civil action for a physical injury, it is generally necessary to show that the injury occurred as a result of something called a “tort”. Torts are categories of legal actions that have been established by the courts over many years; they include assault, battery, trespass, and negligence.
In Alberta, civil action can be taken in either:
- Provincial Court, which has an upper limit of claims worth $50,000, or
- the Court of Queen’s Bench.
The process in Provincial Court is fairly informal, so that it is possible to go ahead without the help of a lawyer. An information booklet on this process is available on our page of Resources and Organizations.
The process in the Court of Queen’s Bench is more detailed and may require the assistance of a lawyer.
Other provinces have similar levels of courts, but they may be named differently.